Partner Matthew Sarelson Profiled in Law360 as Class Counsel for Wronged Government Contractors

Sitting In Deportees’ Feces Not A Real Break, Workers Say

By Kat Greene

A group of security officers for government contractor Akal Security Inc. asked a Florida federal court to hand them a win in their wage-and-hour suit Monday, saying a few hastily downed bites in a filthy airplane full of deportees’ feces and vomit doesn’t count as a real meal period. The security officers say Akal automatically deducts an hourlong “lunch break” after employees sign and turn in blank time sheets at the end of each mission, during which they guard and tend to deportees being sent back to Guatemala, the Dominican Republic and elsewhere, then fly back to Miami, according to the suit. But they aren’t actually given an hour in which to take that break, nor the opportunity to have a “bona fide” meal break under the Fair Labor Standards Act in which they can eat, call home, work out, run errands or do a litany of other tasks, the officers said in a motion for summary judgment Monday. Instead, the so-called lunch comes at the tail end of a long day in an airplane in which a group of detainees has urinated, defecated and vomited during their journey home, according to the filing. “The undisputed testimony is that any food consumed on the job is consumed on an old, smelly, cramped, unsanitary airplane that reeks of feces, urine and vomit,” the officers said. “Even in the light most favorable to Akal, taking a few minutes to eat a cold meal at the end of a 15-hour shift next to a seat covered in a deportee’s feces is not a bona fide meal break within the meaning of the FLSA.” The security officers filed suit last year alleging Akal, a subcontractor that does deportee runs with U.S. Immigration and Customs Enforcement, was deducting an hour’s pay from everyone’s check without anyone actually getting the break they weren’t being paid for, court records show. The workers earlier this month lost a bid for class certification, but they’re still a group of around 21 workers who say the company violates the FLSA by not having them log breaks and by not giving them any real opportunity to take one. The deportees they’re meant to guard on their way back to one of several Latin American countries are chained and are only allowed to take a designated bathroom break, according to filings in the case. The deportees, some of whom are serial killers and child rapists, routinely defecate, urinate and vomit in their seats, the workers say. The workers are given unpaid meal breaks only under certain conditions: first, the return flight to Miami must be empty of deportees, which means the home country must have agreed to accept all of them, and second, the return flight must last more than 90 minutes. But even under both of those conditions, the workers can’t get a fresh, warm meal, can’t leave their work site, can’t call to check on their kids, or do many things that courts have called a “break” under the FLSA, the officers say. Instead, they’re expected to eat the food they brought from home in seats next to the deportees’ stale bodily waste, according to their filings. Akal, for its part, on Friday filed a motion for summary judgment of its own, urging the court to rule in the subcontractor’s favor because, even though the workers are stuck on the aircraft, they’re allowed to do pretty much anything they want and often spend most of their time sleeping, rather than doing any work for the company. The workers lounge around and play video games, and don’t have to do anything productive for Akal other than about 10 minutes of tasks at the beginning and end of the flight, the company said. On a 90-minute flight, they’re given an hour break when, in reality, they’re often not doing anything for Akal for 70 minutes, according to the motion. “The restrictions on plaintiffs’ freedom do not inure to the benefit of Akal, but instead, are simply the restrictions that naturally result from air travel and are experienced by any passenger on any airplane,” the company said. Akal also argued that it at least shouldn’t have to pay liquidated damages because its lunch break policy was executed by an established employment lawyer and Akal was merely following the advice of counsel. And several of the workers scored a settlement in a suit over identical claims a few years ago, Akal said. Akal didn’t change its lunch break policy after striking that settlement, noted Matthew Sarelson of Kaplan Young Moll & Parron, an attorney for the workers. The company’s settlement ended that case, but because it didn’t change anything about its breaks, that settlement simply started the clock on the new suit, he told Law360. “In our case, they got caught with their hand in the cookie jar, and they paid money for putting their hand in the cookie jar,” he said. “Years later, their hand is still in the cookie jar.” A representative for Akal didn’t immediately respond to a request for comment on Monday. The workers are represented by Matthew Sarelson of Kaplan Young & Moll Parron. Akal is represented by Jenna Rinehart Rassif and Derek H. Sparks of Jackson Lewis PC. The case is Gelber et al. v. Akal Security Inc., case number 1:16-cv-23170, in the U.S. District Court for the Southern District of Florida.